Item B: Ordinance Concerning Goal 5 Natural Resources Study

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2888 112 SUPREME COURT REPORTER SOS U.S. 1003 the State Supreme Court, but prior to issu- ance of that court's opinion. Because it de- clmed to rest its judgment on ripeness grounds, preferring to dispose of the case on the merits, the latter court's decision pre- cludes, both practically and legally, any tak- ings claim with respect to Lucas's pream- endment deprivation. Lucas has properly alleged injury in fact with respect to this prearnendment deprivation, and it would not accord with sound process in these circum- stances to insist that he pursue the late- created procedure before that component of his. takings claim can be considered ripe. pp. 2890-2892. ~. The State Supreme Court erred in applying the "harmful or noxious uses" principle to decide tJris case. Pp. 289~2902. (a) Regulations that deny the property owner all "economically viable use of his land" constitute one of the discrete catego- ries of regulatory deprivations that require compensation without the usual case-specific inquiry into the public interest advanced in support of the restraint. Although the Court has never set forth the justification for this categorical rule, the practicaI-and econom- ic-equivalence of physically appropriating and eliminating all beneficial use of land counsels its preservation. pp. ~2895. (b) A review of the relevant decisions demonstrates that the ''harmful or noxious use" principle was merely this Court's early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; that the distinction between regulation that "prevents harmful use" and that which "confers bene- fits" is difficult, if not impossible, to discern on an objective, value-free basis; and that, therefore, noxious-use logic cannot be the basis for departing from this Court's categor- ical rule that total regulatory takings must be compensated. pp. 2896-2899. (c) Rather, the question must turn, in accord with this Court's "takings" jurispru- dence, on citizens' historic understandings regarding the content of, and the State's power over, the "bundle of rights" that they acquire when they take title to property. Because it is not consistent with the histori- cal compact embodied in the TakingS Clause that title to real estate is held subject to the State's subsequent decision to eliminate all economically beneficial use, a regulation hav- ing that effect cannot be newly decreed, and sustained, without compensation's being paid the owner. However, no compensation is owed-in this setting as with all takings claims-if the State's affirmative decree sim- ply makes explicit what already inheres in the title itself, in the restrictions that back- ground principles of the State's law of prop- erty and nuisance already place upon land ownership. cr. Scranton v.. Wheeler, 179 U.S. 141, 163, 21 S.Ct. 48, 57, 45 L.Ed. 126. pp. 2899-290l. (d) Although it seems unlikely that com- mon-law principles would have prevented the erection of any habitable or productive im- provements on Lucas's land, this state-law question must be dealt with on remand. To win its case, respondent cannot simply prof- fer the legislature's declaration that the uses Lucas desires are inconsistent with the pub- lic interest, or the conclusory assertion that they violate a common-law maxim such as sic utere tuo ut alienum non laedas, but must identify background principles of nuisance and property law that prolubit the uses Lu- cas now intends in the property's present circumstances. Pp. 2901-2902. 304 S.C. 376, 404 S.E.2d 895(1991), re- versed and remanded. ,.Wo6SCALIA, J., delivered the opinion of the Court, in which REHNQillST, C.J., and WHITE, O'CONNOR, and THOMAS, JJ., joined. KENNEDY, J., tiled an opinion concurring in the judgment, post, p. 2902. BLACKMUN, J., post, p. 2904, and STEVENS, J., post, p. 2917, tiled dissenting opinions. SOUTER, J., filed a separate statement, post, p. 2925. A. Camden Lewis, Columbia, S.C., for peti- tioner.